This paper will address the
issue of violence against women in Sudanese laws. Since 1989 the current
government of Sudan enforced legislation and procedures based on Islamic
principles. The present legal practices and fundamentalist Islamic discourse
violate previously guaranteed constitutional rights to equality in law of women
and non- Muslims in Sudan and disregard international standards of women’s human
rights.

The
paper will survey cases in which some of newly adopted laws such as the Public
Order Act, the Family law, the Criminal law and other administrative decrees
reflect violence, abuse and gendered power relations which are affecting
Sudanese women’s citizenship and human rights. The study is based on experience
gained through advocacy provided to women victims of violence and female prison
inmates.

Preamble

Historically, gender
oppression has been practiced against Sudanese women as part of the general
social, economic and political structure. Patriarchal hierarchy and biases have
mediated women’s cultural identity, their relationship with the state and the
construction of laws. In the process of this socialisation, women’s dependency
on the men in their lives: fathers, brothers, husbands and later sons, became
the norm, while the social environment reduced them to their most biological
functions. Even today, women’s accessibility to areas such as legal assistance
is extremely limited, and a woman’s decision to go to court is largely
influenced by the approval of her male guardian.

During the period following
independence and particularly as from the 1960’s women obtained a significant
number of political and civil rights such as equality before the law, equality
in job opportunities, right to vote, the right to equal pay, the right to
maternity leave, the right of ownership and the right to hold public office.
However, lack of or little education and jobs for the majority left women prey
to abusive marriages, harmful custom and traditional practices and exploitative
work.

A
protracted civil war in the Southern Sudan has furthermore resulted in the
plight of hundreds of thousands of Southern Sudanese women who have taken refuge
in the Northern towns. Changes in the status of these women have made them most
vulnerable to all forms of abuses and violence. Besides enduring the brutalities
of the war, non-Muslim Southern Sudanese women living in the capital city
Khartoum are also obliged to conform with the strict application of Shari’a
(Islamic Jurisprudence).

The situation of Sudanese
women has been further compounded by a long span of authoritarian governance
which culminated in the virulent rise to power of a hard-line Islamic discourse.
This development, which began in 1983, has brought in its wake a far lesser
commitment to confront gender inequality than had been conceded by previous
democratically elected conservative governments. The onslaught on democracy
which occurred on June 30, 1989 not only banned all secular opposition, all mass
organisations including women’s, but also outlawed other more inclusive
interpretations of Islamic social justice.

The practices of the
present regime in Sudan bear no relation to those outlined in the previous
Constitutions of the country (1973, 1985) which provided for equality of women
in law and which upheld the diversity of the nation with its multi-ethnic and
multi-religious composition. The Constitution is suspended and the entire
country is now under a state of martial law.

The legislative power,
moreover, has turned its back on all previously recognized international human
rights and conventions in respect to women’s rights and their
development-related activities. Under the present Islamic laws, women are
subjected to direct violence sanctioned and condoned by the state in which law
and authority are used as tools. Penal measures include the penalties of
flogging, stoning and the imposition of a dress code, as well as restrictions on
women’s economic activities, freedom of speech, movement and association, and
lack of respect for ethnic, religious and linguistic minorities.

This paper will attempt to
show a significant portion of the present government’s actions are directed
against women.

This reality has created a
diffuse sort of violence against women as evidenced by inequality before the
law, socio-economic discrimination, the dissemination of fear, insecurity and
political manipulation. Thus excluded from the public arena and threatened in
the domestic sphere, Sudanese women are being denied their full talents of
citizenship. In Sudan of today many of the best educated and highly skilled
women are leaving the country thus contributing to the “brain drain” as a result
of the fact that their attentions have been diverted from the fundamental
challenges of socio-economic development.

The Public Order
Act

These are
new laws to the Sudanese legal tradition and were issued after the 1989 coup
which also witnessed the suspension of the Constitution. They originated as
constitutional decrees, their source is the President of the
Republic.

The
Public Order Act was introduced to storm against society’s “immorality”, to
penalize alcohol consumption, to organise market places and to control public
appearance. Most of the provisions of this law are regulated by criminal courts.
Provisions 77, 78, 79 of the Criminal law constitute the majority of cases
against women which include: disturbance of public order, consumption of alcohol
or dealing with it. The penalty for these offenses is forty (40) lashes
(flogging) if the offender is Muslim, imprisonment and payment of a fine. Yet,
most of the cases involve non-Muslim women.

Public Order Courts are
mandated to provide speedy justice for violations of the Public Order Law. In
these courts, which are similar to exceptional or military courts, women
arrested directly from their homes or one day before the trial are brought
before the judge who then issues a speedy court ruling. Women are flogged on the
spot. They have no access to defense counsel and are not given the opportunity
to appeal their sentences in proceedings meeting previous Sudanese legal norms
for a fair trial On some occasions when lawyers tried to intervene on behalf of
the women, they were led out of court by the police forces. The justification
given for the expeditious nature of these rulings is that a normal court hearing
takes a longer time, whereas in these courts (which may last less than twenty
minutes) only one hearing is deemed sufficient.

Summary justice violates
due process, and is stripping ever larger segments of Sudanese women of control
over their lives. Most of the women sentenced by Public Order Courts are
non-Muslim Sudanese women who have been displaced by the on-going conflict in
Southern Sudan. They have fled from the bloodshed, famine and insecurity and
have become heads of households with hardly any means of livelihood. Moreover,
these communities abide by their own traditions and socialising customs in which
the consumption and brewing of alcohol are not prohibited, unlike in the towns
of Northern Sudan where the prevailing Shari’a laws are strictly applied. This
has led to large numbers of Southern Sudanese women ending up in prison, where
alcohol offenses constitute 80% of all ‘crimes’ registered. Consequently, the
Public Order Laws are insensitive to the conditions of these women for whom
brewing of alcohol for sale has furthermore become a means to sustain themselves
and their families.

Case

Akol Ariel is a woman from
the Dinka tribe, married, with three children. Her house was raided by the
Popular Police Force when she and her family were celebrating her sister’s
wedding. All her brewing equipment was confiscated on the spot. Akol tried to
explain to the police that alcohol consumption is a social habit particularly at
weddings. Her explanation was rejected. She was taken to court and sentenced to
pay a fine. Being poor, there is no way that Akol can pay the fine, which means
her prison sentence will be extended.

The Public Order Law
contains another provision concerning “moral cleansing”. Under this law, the
police can stop any woman in the street on the grounds that she is improperly
dressed, meaning not strictly adhering to the Islamic “hijab” (generally a loose
garment covering head to foot which does not reveal the contours of a woman’s
body). Infractions of this dress code are immediately punished by dragging the
women involved to the nearest police station, where they are insulted and
humiliated. Likewise, all female students are prohibited from entering
institutions of higher education unless they conform with the Islamic
dress.

These
measures constitute an assault on women’s identity and dignity and are aimed at
them solely on the grounds of their gender, treating them as bodies “which
invite acts of immorality”. Their impact has created a continuous sense of
insecurity among women.

The Public Order Law also
penalizes prostitution and/or other “shameful conduct”. This means that a woman
can be charged on grounds of mere “suspicion of the intention of
prostitution”.

Case

Zeinab Yohanis, an
Ethiopian woman married to a Sudanese, was arrested while she was watching TV in
the company of friends, and charged under article 5 of the Criminal Law. As she
was pregnant, the judge exempted her from flogging (article 35 prohibits
flogging of the elderly and the sick). However, Zeinab was flogged just the
same. As a consequence, Zeinab lost her unborn baby...

The fourth section of the
Public Order Law contains general provisions such as the segregation of sexes in
public transport seating and the separation of men and women in public places.
Violation of this law requires payment of a fine of five thousand (5000)
Sudanese pounds or twenty-five (25) lashes or both punishments. These measures
are particularly inappropriate, given the fact that they have not been taken in
response to any women’s campaign for separate bussing as was the case, for
example, in Bangladesh where women’s groups specifically demanded separate
bussing to and from the work place as a preventive measure against acts of
violence. The provisions of this law, therefore, contain elements of criminal
intent, designed to victimize Sudanese women rather than to seek their
protection.

The
Public Order Law does not provide any safeguards against the abuse of women with
refugee status in Sudan, who, due to their precarious situation, may not have in
their possession such documents as a marriage certificate when they are
arrested.

Case

In Omdurman prison we met
with an Eritrean refugee woman, Lotus Farmatin, 30 years old, housewife,
Christian, mother of one child. She lives in Gireif, east of Khartoum. Lotus was
charged with adultery under article 156 of the Criminal Law (meaning sexual
relationship outside marriage). Her story is as follows:

She was in disagreement
with her husband whom she married before seeking refuge in Sudan. Things
deteriorated between them until it reached the police. The judge asked to see
her marriage certificate which she was unable to provide. She was subsequently
sent to prison with her eleven month old baby. Due to conditions in the prison,
her child died and Lotus suffered a mental breakdown...

The Public Order Law also
punishes informal sector activity which is generally practiced by poor women
trying to survive by selling tea and coffee. Besides being harassed by
passers-by, petty thieves and men seeking their bodies, these women are also
subjected to “sweep campaigns” (Kasha) designed to “cleanse the city “. Their
meagre utensils are usually confiscated on the spot, while most of them risk
flogging as they cannot produce the license required to set up a
trade...

Family (Personal) Law

Family or Personal Law is
the legislation which regulates affairs concerning engagement, marriage,
divorce, child custody, inheritance, ascendants, and will.

This Law was issued in 1991
again in the absence of democratic debate and without the participation of the
women whose lives are the most affected by the provisions inherent in this
Law.

The most
flagrant discrimination against women stipulated in the provisions of this Law
on which we shall focus concern the following:

The
Marriage Contract

According to M. Saeed Al
Ashmawi (1992, p.88), the marriage contract is civil even in Shari’a and is not
a religious contract. It occurs when an adult female and an adult male agree to
their union. However, religious movements have given this simple act of
acceptance a religious tenor which was unintended in Shari’a.

In article 11 of the Family
Law 1991, marriage is defined as a contract of (sensual) “pleasure” between both
parties according to Shari’a. However, “pleasure” as defined in this
interpretation is removed from the reality of the vast majority of Sudanese
women who have been socialised by custom AND religion into believing that the
husband has a sexual right over his wife, as well as the right to enjoy sexual
relations with his wife whenever he so wishes, while the woman, if she practiced
the same right would be a source of (heavenly) malediction. These “beliefs” are
among the main reasons why women rarely seek divorce in
court.

Case

Fatma A., lives in the
outskirts of Omdurman. Her husband refused to pay maintenance allowance to her
and her three children. He continued, however, to demand to sleep with her. She
resisted his demands and so he started to beat her, forcing her to give in to
his demands.

We
followed Fatma’s case until we succeeded in obtaining her divorce in May 1996.
However, our defense was based on the fact that the husband had stopped paying
the maintenance allowance, as our real case for her, which is forced sexual
relationship or rape, would not have convinced the judge under the prevailing
interpretation of marriage in Sudan.

Guardianship

Articles 32, 33, 34
stipulate that the guardian or protector (Wali) of a woman should be a sane and
mature male. This provision further states that no marriage can be signed
without the authorisation of the guardian: father, brother, uncle. Should a
woman marry without her guardian’s consent or without his knowledge, the Law
gives the latter the right to call off the marriage. In cases where a woman does
not consent to a marriage, the guardian can go through with the signature of the
marriage in spite of that. Provisions such as these are reflective of the
patriarchal power over women in which Law and authority are used as tools. This
is a violation of Section B, article 16 of CEDAW: “the same right freely to
choose espouse and to enter into marriage only with their free and full
consent”.

Case

Haram S. is a 12 year old
(!) girl who we met at the Shari’a court in Khartoum North. Her father had given
her away in marriage without her consent, and she did not even know the
whereabouts of her “husband”. Our office followed her case until we obtained her
divorce. As the Law does not specify an age for marriage, this subjects young
girls in Sudan to grave violations of their human rights.

The consent of a male
guardian or blood relative is also required by all women, regardless of their
age or profession. Women called to attend conferences abroad have experienced
this gross violation of their freedom of movement, and above all their dignity,
as this guardian can sometimes be their own son or a younger
brother!

Polygamy

The Law does not prohibit
polygamy and is silent on any restriction in the number of wives a husband can
take in marriage. Moreover, the Law does not give the wife the right to divorce
when her husband takes another wife. Many pending court cases are of women who
are unaware that their husbands have taken a second (third or fourth....)
wife.

Case

Mariam H. A., lives in Haj
Youssif, East Khartoum. She is from the Nouba Mountains (South-West Sudan),
married, with three children. Her husband took a second wife and started beating
her. She filed a complaint of battering and abuse. Her husband admitted to
battering her in front of the court, but the ruling was not divorce. We changed
the reason for demanding divorce, and after a long time, the divorce was
granted....

Administrative and Labour Laws

The participation of
Sudanese women in public service began in the 1920’s, and was then restricted to
the fields of teaching and health care with the expansion of educational
opportunities, more and more women entered the civil service. The presence of
women in the civil service had a profound impact on the amelioration of working
conditions and labour laws for women throughout the country. Women obtained
equality in job opportunities, equal pay with men, the right to maternity leave
and the right to hold public office.

Since 1989, the exercise of
these hard-won rights has been severely restricted by two major developments:
political control and coercion aimed at weakening the position of women in
Sudanese society.

Dismissal for Public
Interest

After seizing power in June
1989, the present regime set out on a massive purge of the civil service and of
the institutions of civil society. Thousands of men and women were fired from
government jobs for “Public Interest” reasons, meaning in plain language (that
they are) politically incorrect. Many professional women from the Judiciary and
Foreign Affairs ministry were sent to retirement. Privatisation of banks later
led to government layoffs of women on grounds of economic austerity measures. In
private sector employment, cases of dismissal are related to pregnancy or
maternity although this is not mentioned in the dismissal letter. This occurs in
spite of the fact that the Sudan is signatory to the agreement which forbids
dismissal of female workers on ground of pregnancy or maternity.

The neutrality of the civil
service has thus been completely eroded.

Recruitment,
Promotion and Public Appearance

While present and previous
labour legislation prohibit sex discrimination in recruitment policies, in
actual practice certain institutions such as the Judiciary, the Universities and
the Foreign Affairs Ministry are restricting the employment of women. This is so
in spite of the fact that the law stipulates that public sector employment is
based on free competition and on the basis of qualification. In actual fact, the
case of Sarra Y. which follows has become only too familiar to female University
graduates.

Case

Sarra Y. graduated from the
Faculty of Veterinary Science; her qualifications permitted her to apply for the
job of teaching assistant at the University. Her demand was rejected, and a male
colleague with a lesser qualification was chosen for the post...

In the area of promotion to
a higher scale in office, discrimination on the grounds of religion and gender
has lately become the norm. The general procedure is that the head of the
department concerned would present a report on the performance of the candidate
due for promotion. However, most of the heads of departments who write these
reports are men, and one of their latest prerogatives is to add five (5) points
to the general evaluation report if they consider that the woman’s “public
appearance” is in conformity with the teachings of Islam.

This is a notorious
development which does not equally apply to men, and had never existed in the
Labour Laws prior to 1994.

Criminal Law 1991

Criminal Law defines the
forms of conduct which are unacceptable to the society and stipulates them in
the form of crimes punishable by law.

We shall refer here to two
main issues which demonstrate the way in which the current criminal legislation
discriminate against women and violate their human rights.

Article 92 of the Criminal
Law makes it a condition that only a woman can (body) search another woman. This
remains theoretical if we consider that the entire police force includes in its
ranks forty-five (45) women police officers, in addition to one hundred and
seventy-one (171) policewomen. The insignificant number of women police officers
leaves women prey to the most demeaning forms of violence, particularly sexual
molestation during night shifts, when women officers are generally not on duty.
Fearing their superiors, most of the female police officers are silent about the
situation.

Conditions are particularly
alarming in the women’s and juveniles’ prison where there are no separate
quarters for underage inmates and adults. At the same time no special care is
provided for young children living with their incarcerated mothers. This has led
to an increasing number of child deaths in Sudanese prisons.

Articles 68 and 69 of the
Criminal Law concern so-called Public Disturbance Offenses: riots against the
State or illegal gatherings, which may lead to punishments ranging from
incarceration to payment of a fine or both. However female offenders are not
judged according to these provisions, but are subjected to physical and
psychological violence by Security agents. In the best of cases, women who
commit such offenses are sent to Omdurman Prison for Women where they are kept
with other women criminals, as there are no separate areas for women political
prisoners.

Case

S. A. N, a University
Lecturer whose brother was sentenced to death, is an opponent of the regime and
was exposed to the situation in the women’s prison. She was unable to find a
proper place to settle down in the prison until the social workers gave her
their office. She was detained under these conditions for three months which
were extended to a further three months...

Another case is that of a
young woman whose husband was arrested and sent to jail. When the security
agents came for him, they searched the house and found some anti-government
leaflets. They threatened to rape the young woman if she did not inform them of
her husband’s whereabouts. A nursing mother, she was denied access to her baby
for a long while which affected her mental health. As a result, the young woman
and her family later left Sudan.

There are thousands of
women like the cases mentioned above who have been tortured, abused and kept for
days on end in the offices of the state
security.

Perspectives on an Agenda for
Action

At the
UN World Conference on women in Beijing in September 1995, the official Sudanese
women’s delegation expressed reservations to the following Articles in the
section on Violence Against Women:

Articles 113:

Physical, sexual and
psychological violence occurring in the family, including battering, sexual
abuse of female children in the household, dowry-related violence, marital rape,
female genital mutilation and other traditional practices harmful to women,
non-spousal violence and violence related to exploitation.

Articles 124:

Condemn violence against
women and refrain from invoking any custom, tradition or religious consideration
to avoid their obligations with respect to its elimination as set out in the
CEDAW.

This
does not bode well for the immediate future of a violent-free society for the
women of Sudan. How to move beyond the exclusive and retrograde views espoused
by Muslim fundamentalist men AND women will remain a particular challenge for
the women in Sudan. Meanwhile, a valuable contribution to stem the spread of
“fundamentalist” violations of Sudanese women’s human rights would be to provide
sustained support to those groups that are attempting to act outside the sphere
of the present state in Sudan.

In correlation with the
above, and with the knowledge that international documents have little power in
forcing the compliance of governments with their provisions, pressure should
nevertheless be brought to bear on the Sudanese government and its legal
advisers to ratify the Convention on the Elimination of all forms of
Discrimination Against Women as well as all the conventions concerning women’s
rights. As some twenty-nine African states have ratified the Convention
including three states where Islam is the state religion (Egypt, Libya,
Tunisia-with reservations limiting its meanings nonetheless), it would appear
that there is now more space for regional lobbying on the issue of African
women’s oppression than in the past, and this potentially transformative
occasion should not be missed.

News report: Draconian Law
on Public Decency passed in Sudan

KHARTOUM, Sudan October 22,
1996 (PANA) — Authorities in Khartoum, capital of the Sudan, Tuesday, adopted a
law that seeks to separate men and women in public places and public gatherings
and introduce strict “decency” rules.

The public order, that
touches on everything from drinking to dressing, regulates public conduct along
the tenets of the Islamic Shari’a law.

The law, passed by the
Khartoum state council, says men and women attending public parties such as
wedding parties and galas, should be separated by a barrier and they should not
sit facing each other.

Women using public
transport will not be allowed to sit on the seat near to the driver and the
verse from the Koran asking the believers not to look at the opposite sex should
be written clearly on the bus wall.

Owners of cars used for
public transport should not write any expression or word that offends the public
taste inside the carriage, the law further says.

The law bans the use of
tape recordings of “obscene” songs in public transport, public and private
places.

Smoking
is prohibited in public transport or closed public places, the law
stipulates.

In
case of demonstrations and popular processions men and women should march in
separate columns. Women should be separated from men in public meetings and
political gatherings as well.

Men and women, the law
further demands, should sit separately in places of recreation.

Women are not allowed to
“move about in marketplaces at night unless with a close male
relative.”

No
sports should be performed with short or tight fitting clothes that may reveal
the structure of the human body.

Women sports should be
performed in private places and away from places frequented by men, the law
adds.

Called
the Provisional Decree for Public Order of the State of Khartoum for 1996, the
law bans the allocation of dark areas in public places where individuals and
groups can sit.

Members of folklore troupes
are obliged to put on dresses that cover the body when performing their shows,
the law says.

No person, male or female,
should go out of his house without wearing clothes that well cover the
body.

The
taking of or trafficking of alcohol and narcotics is prohibited in public and
private places.

The law bans the taking,
developing, trafficking and displaying of pictures that contain scenes of naked
bodies.

Individuals and groups
taking part in picnics, of all sorts, should observe this law.

Males are obliged not to
wait near girl schools or the roads leading to these schools without
justification.

Public places that render
services near girls schools or the roads leading to these schools should not use
dark glass windows or curtains at the entrances and such places should be well
lit.

The law
also demands that private schools should separate male students from
females.

Pupils
are not allowed to move about outside the school fence during the school day
without obtaining permission from the school.

Urinating and defecating is
prohibited on roadways.

Cards and the like should
not be played in front of houses or on roadways.

The Khartoum council has
suggested a comprehensive media campaign to explain the law to the
public.

Sudan
adopted the Islamic Shari’a law in 1983. In 1991 the government of General Omar
el Bashir issued an amended version of that law.

In 1992 the government
adopted federal rule to run the culturally and ethnically diverse country of 26
million.

Now it
remains to be seen whether other states with Muslim majorities would issue laws
similar to the Khartoum law.

Already courts in northern
Sudan apply the Islamic penal code that prescribes certain punishments for
thefts, liquor drinking and adultery according to the teachings of the Koran or
the tradition of Prophet Mohammed.